Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injuries a 44-year-old man (the “Complainant”) suffered during an interaction with police.

Notification of the SIU

On January 25, 2021, at 3:41 a.m., the Halton Regional Police Service (HRPS) notified the SIU of the Complainant’s injury.

According to HRPS, on January 24, 2021, at about 10:06 p.m., the Ontario Provincial Police (OPP) attempted a traffic stop on the Queen Elizabeth Way (QEW) near Third Line, Oakville. The vehicle [now known to be operated by the Complainant] failed to stop and drove northbound on Bronte Road, after which HRPS police officers became involved. After some time, the vehicle drove west on Highway 5 [also known as Dundas Street] in Burlington, where HRPS police officers successfully laid down a spike belt. The vehicle operated by the Complainant continued westbound on Highway 5/Dundas Street toward Waterdown with HRPS police officers following it. The vehicle crashed into the ditch on Highway 5 west of Highway 6 in Waterdown. The Complainant was transported to the Hamilton General Hospital (HGH) where he was diagnosed with a broken nose and internal injuries.

The Team

Date and time team dispatched: January 25, 2021 at 0400 hours

Date and time SIU arrived on scene: January 25, 2021 at 0458 hours

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Number of SIU Collision Reconstructionists assigned: 1

SIU investigators interviewed civilian and police witnesses, canvassed for additional witnesses and searched for and obtained Closed-circuit Television (CCTV) data in the area where the incident occurred, and more especially along the route of the suspect apprehension pursuit (SAP).

SIU investigators made digital photographs and a drawing of the scene, collected exhibits relevant to the incident and made video recordings of the route of the SAP once it was established through analyses of Automated Vehicle Locating (AVL) and Global Positioning System (GPS) data obtained during the investigation.

One SIU investigator having specialized training in collision reconstruction analyzed and reported on data obtained during the investigation.

Ontario Regulation 266/10 governing SAPs and the Highway Traffic Act were reviewed in context with the incident.

Affected Person (aka “Complainant”):

44-year-old male interviewed, medical records obtained and reviewed

The Complainant was interviewed on February 17, 2021.

Subject Officials (SO)

SO #1 Declined interview and to provide notes, as is the subject official’s legal right
SO #2 Declined interview and to provide notes, as is the subject official’s legal right
SO #3 Declined interview and to provide notes, as is the subject official’s legal right
SO #4 Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

The witness officials were interviewed between January 30, 2021 and February 7, 2021.

Additionally, the notes from five other officials were received and reviewed.

Service Employee Witness (SEW)

SEW Interviewed

The SEW was interviewed on February 4, 2021.

The Scene

The scene where SO #2’s and the Complainant’s vehicles collided was the westbound lane of Highway 5 several hundred metres from its intersection with Highway 6, with both vehicles terminating their movement in front of 71 Highway 5, depicted in the map below as 71 ON-5, Dundas, ON L9H 7L6.

The collision scene was not well protected. There were HRPS officers present and they were preserving the area around the vehicles, but vehicle traffic on Highway 5 continued to pass by.




Figure 1 – Google Map of collision area.

The roadway at this location has a northeast/southwest direction bearing. It was straight and level with one lane of traffic in each direction. It was a rural location with sporadic homes and light industrial buildings. The road was in good repair, and the road markings were visible. There was no street lighting in the area. The speed limit was 60 km/h.

There were three vehicles on the north side of the roadway:

• A white Acura MDX SUV. It was in the northside ditch with the front end against a tree. It had heavy front-end damage and scrapes along the left side. The right front tire had shredded away from the rim.
• A HRPS Ford Explorer SUV operated by SO #3 with full police markings and emergency lights. This vehicle was resting partially over the shoulder with the right front corner against the right rear corner of the Acura. There was minor damage to the right front corner of the police vehicle and there was a transfer of fresh white paint on the left front corner.
• A HRPS Ford Explorer SUV operated by SO #2 with full police markings and emergency lights. This vehicle was in the parking lot at 71 Highway 5, facing northwest. It had damage to the front end and right side.

Figure 2 – Photograph of the passenger sides of the Acura MDX and SO #3’s HRPS Ford Explorer




Figure 3 – Photograph of the driver side of the Acura MDX




Figure 4 – Photograph of the left front corner of the HRPS Ford Explorer driven by SO #2




Figure 5 – Photograph of the right side of the HRPS Ford Explorer driven by SO #2
There were tire marks on the roadway leading to the positions of the vehicles. There was also an intermittent scrape mark on the road prior to the tire marks.

There was substantial collision damage to the front end of the Acura MDX as it had collided with a tree. There was further collision damage to the passenger side rear corner as it was in contact with an HRPS vehicle before the terminal collision. Also, on the driver’s side of the Acura MDX, there was further collision damage indicating contact with another vehicle. The passenger side front tire had been torn off and it appeared that it had been shredded. Inside the vehicle on the driver’s seat was a baseball bat. The steering wheel airbag had been deployed and an area of staining suspected to be blood was present on the airbag material. The windshield had been damaged. Within the broken glass of the windshield were areas of hair embedded into the glass. Outside the vehicle in the immediate area of the driver’s door was an area of debris including broken auto parts, personal items suspected to be from inside the vehicle and an area of suspected bloodstaining.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and a number of officers that took part in the pursuit, as well as information derived from forensic examination of the scene, the ICCS footage captured by one of the involved police vehicles and the GPS data from other police vehicles. As was their legal right, none of the subject officials chose to interview with the SIU or authorize the release of their notes.

At about 10:52 p.m. of January 24, 2021, while traveling west on Highway 5 in Dundas, Ontario, the Complainant’s Acura MDX SUV crashed into the northside ditch of the roadway. The vehicle came to a rest having struck a tree in front of the property at 71 Highway 5, approximately 700 metres west of the road’s intersection with Highway 6. The collision marked the culmination of a protracted engagement with several HRPS officers, some of whom had attempted a rolling block of the Acura moments before.

The Complainant first came to the attention of the police shortly before 10:00 p.m. as he made his way westbound on Highway 403 through Oakville. WO #1 of the OPP, patrolling the highway and operating a speed measurement device, had clocked the Acura traveling at 154 km/h. The officer activated his emergency equipment intending to stop the driver for speeding. The Complainant pulled to the right and onto the Third Line exit ramp. Instead of stopping, however, the Complainant blew through the red light at the ramp’s end onto southbound Third Line. WO #1, deciding not to pursue, pulled over onto the shoulder of Third Line and radioed what had happened.

The OPP notified the HRPS of the “fail to stop” and HRPS officers were directed to “be on the look-out” for the Acura. An HRPS officer first spotted the vehicle northbound on Bronte Road at Wyecroft Road. SO #4 and his passenger, WO #2, observed the Acura approaching their location at Bronte Road and Dundas Street, and attempted to set up a spike belt in the area. The Complainant, however, turned westbound onto Dundas Street before the device was deployed. SO #4 and WO #2 followed the Acura at a distance on Dundas Street, watched as it disregarded red traffic lights and swerved through lanes of traffic, and eventually lost sight of it.

HRPS officers picked up the Acura’s trail again as it exited onto Appleby Line. With several police vehicles behind him, the Complainant travelled south until Upper Middle Road, whereupon he made a U-turn and proceeded north on Appleby Line. After a distance, the Complainant turned back again and travelled south until Dundas Street, where he turned right and accelerated westward.

WO #3 was among the HRPS officers who had tracked the Complainant on Appleby Line and was the lead officer behind the Acura as it travelled west on Dundas Street. The officer noted the Acura’s speed over the radio - about 130 km/h at one point - as well as the traffic and road conditions, which were light and clear. Not wanting to alert the Complainant to his presence, WO #3 did not activate his emergency equipment and stayed well back of the Acura. The officer lost ground on the Acura as he came to a stop at the red light at Brant Street, which the Complainant had disregarded. In the area of Burke Street, WO #3 radioed that the Acura’s front right tire had come off. Moments earlier, on Dundas Street just east of Highway 407, SO #1 had deployed a spike belt over which the Acura had travelled.

As the convoy of vehicles neared Hollybrush Drive, SO #1 went over the radio and called for officers to, “Box him in, get him stopped.” With that, several police cruisers overtook WO #3’s vehicle and positioned themselves around the Acura. Among these was a cruiser operated by SO #4. The officer, having accelerated to position his cruiser ahead of the Acura, was struck from behind by the Complainant just east of Clappison Avenue. The Acura continued past Clappison Avenue on a red light as SO #4’s cruiser came to a stop in the vicinity of the intersection.

The Complainant continued a short distance through the red light at Highway 6 with multiple police cruisers still on his tail. Several hundred metres west of the intersection, SO #2 maneuvered his cruiser into the eastbound lane alongside the Acura, still traveling west on Dundas Street. A short time thereafter, the driver’s side of the Acura and passenger side of the cruiser collided. The Acura was sent rightward into the northside ditch of the roadway where it struck a tree. The cruiser jumped the northside curb just west of the Acura’s rest location, travelled through the ditch and came to stop in a parking lot.

The HRPS cruisers that had been following the Acura converged on the scene of the collision. SO #3 drove his cruiser’s front end up against the rear passenger side of the Acura to prevent its continued operation. Led by SO #1, and arrest team of several officers was formed and slowly made their way to the Acura. They yelled at the Complainant to exit the vehicle. When he did not, the officers smashed the driver’s door window and opened the door, through which they extricated the Complainant before handcuffing him.

Following his arrest, the Complainant was taken by ambulance to hospital where he was diagnosed with a fractured nose and other internal injuries.

Section 320.13, Criminal Code – Dangerous operation causing bodily harm

On January 25, 2021, the Complainant was seriously injured in a motor vehicle collision. As his vehicle was being pursued at the time by DRPS officers, the SIU was notified and commenced an investigation. SO #1, SO #2, SO #3 and SO #4, each of whom had played a part in trying to stop the Complainant, were identified as subject officials. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials committed a criminal offence in connection with the collision and the Complainant’s injuries.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. Simply negligence is not sufficient to ground liability under the provision. That is to say, it is not enough that the conduct in issue fell short of a reasonable standard of care. Rather, as an offence of penal negligence, liability is predicated, in part, on conduct that departs markedly from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the issue is whether there was a want of care on the part of any of the subject officials in the manner in which they operated their vehicles that contributed to the collision at the end of the pursuit and/or was so egregious as to attract criminal sanction. In my view, there was not.

The HRPS officers who initially responded to the “fail to stop” broadcast put out by the OPP in relation to the Acura were acting in the lawful discharge of their duties. They were aware that the Complainant had been detected speeding on Highway 403 at 154 km/h. At that velocity, not only were there grounds to believe that he had committed an infraction under the Highway Traffic Act for speeding, but there were arguably grounds to also believe the Complainant was committing the Criminal Code offence of dangerous driving. If not, those grounds certainly materialized very quickly following their initial interventions as the Complainant was seen to travel past red lights and weave recklessly in and out of traffic, including via oncoming lanes of traffic.

The HRPS officers’ engagement with the Acura started in earnest after the Complainant turned westward onto Dundas Street from Appleby Line. Indeed, though HRPS officers had tracked the Complainant from Bronte Road onto Dundas Street, and then south and north on Appleby Line before the turn onto Dundas Street, during which time the Complainant continued to speed and disregard traffic control signals, it is not altogether clear that he was even aware of the officers’ presence behind and in front of the Acura for much of this time. Once on Dundas Street from Appleby Line, there is insufficient evidence to reasonably conclude that any of the subject officials transgressed the limits of care prescribed by the criminal law.

The first significant intervention during this time was the deployment by SO #1 of the spike belt across Dundas Street, which I am satisfied was a tactic reasonably available to the officer. At minimum, it is evident that the device punctured the Acura’s front passenger tire. By that time, it had become abundantly apparent that the Complainant constituted a clear and present danger on the roadway. He had shown a reckless disregard for the lives and safety of the traveling public around him, blowing through multiple red lights, speeding, and driving in the opposing lanes of traffic to maneuver around vehicles. It was also obvious that he had no intention of stopping for the police, whose presence he had by then discerned. There was some urgency in the circumstances to stopping the Acura giving its continuing threat to public safety, and I am unable to reasonably conclude that SO #1 acted imprudently in resorting to the spike belt, even though he would have appreciated its successful deployment would result in some loss of control by the Acura’s driver. As it turned out, the spike belt resulted in the controlled deflation of the Acura’s front passenger tire, and no motorists or pedestrians in the area were actually endangered by its use.
Thereafter, while there were aspects of the manner in which the subject officials operated their vehicles that are open to legitimate scrutiny, I am satisfied that they comported themselves within the limits of care prescribed by the criminal law until the rolling block was called by SO #1. Thus, while the officers exceeded the speed limit as they attempted to keep pace with the Acura, the GPS data associated with their cruisers suggest that the subject officials’ speeds hovered between 110 and 120 km/h at their top end along sections of Dundas Street governed by 60 km/h and 80 km/h speed limits. Coupled with the light traffic on the roadway, and the clear and dry weather, I am not persuaded that those speeds created an undue risk of harm, particularly as there is no indication of any third parties having had to take evasive action to avoid the cruisers. Moreover, though there is circumstantial evidence based on an interpretation of the GPS data that one or more of the subject officers may have failed to come to a complete stop at red lights along the route, there is no definitive evidence in this respect. On the other hand, there is evidence that the vehicles slowed and, on occasion, stopped, before proceeding through red lights at traffic-controlled intersections. Finally, there is no question of the Complainant having been unduly pushed by the subject officials until the penultimate stages of their engagement. Until the takedown was called in the area of Hollybrush Drive, the police vehicles were well back of the Acura affording the Complainant every opportunity to desist from his reckless course had he been so inclined.

In the final analysis, the subject officials’ liability comes down to the rolling block that was called by SO #1 and its attempted execution by SO #4, SO #3 and SO #2. [2] The tactic, requiring as it does the positioning of cruisers ahead, behind and beside the subject vehicle in order to force it to a stop, carries with it the possibility of vehicular contact and is inherently dangerous. It should be reserved for the most pressing situations. It is arguable whether this was one of those situations.

By the time SO #1 called for the takedown, it was clear that the Acura had lost a front tire. Quickly thereafter, as SO #4 pulled up ahead of the Acura to begin the rolling block, it also became clear that the Complainant was prepared to use his vehicle to ram his way through any blockade as he struck the rear of the officer’s cruiser. In the circumstances, would not the better course have been for the officers to keep their distance, as they had been, rather than to risk vehicular contact once more by again surrounding the Acura? As it happened, vehicular contact is exactly what occurred, and is precisely what resulted in the Acura’s loss of control and crash into the ditch.

On the other side of the ledger, there can be no doubt that the Complainant’s driving had for a protracted period of time constituted a serious danger on the roadway. He had managed to travel past multiple red lights with impunity as he drove westbound toward Highway 6, but not without some close calls. At Clappison Avenue, for example, a civilian driving a van north into Dundas Street on a green light had to come to a sudden stop to avoid colliding with the Complainant proceeding west through the intersection. The officers could pull back and hope for continued good fortune as the Complainant made his way westward toward other traffic-controlled intersections, or they could seize the opportunity of a hobbled vehicle to attempt to bring the pursuit to an end. In the heat of the moment, it would be difficult to conclude that the balance of public safety considerations was so prohibitive as to render any takedown attempt markedly unreasonably.

There is one additional area of the evidence that must be addressed. Specifically, there is evidence that SO #3 and SO #2 intentionally drove their vehicles into the Acura that the Complainant was operating. The crash data retrieved from SO #2’s cruiser reveals steering input to the right at about the time of the cruiser’s collision with the Acura just before both vehicles crashed into the ditch. And there is an apparent paint transfer scuff mark on the front bumper of SO #3’s cruiser indicating that it might have contacted the Acura sometime before it drove up to the vehicle and pinned it against the tree. If true, the evidence might reveal a significant escalation in the risk level to the public created by the officers, including to the Complainant himself.

The evidence, however, is insufficiently cogent to tip the balance of the liability analysis against the officers. With respect to the contact made between SO #3’s cruiser and the Acura, little if anything is known about where the impact occurred and whether it was accidental or prompted by the conduct of the officer or the Complainant (or some combination of both). As for the contact between the Acura and SO #2’s cruiser, the officer’s passenger, the SEW, believed that it was precipitated by the Complainant intentionally driving into the police vehicle’s passenger side. The collision damage done to both vehicles, in my estimation, is consistent with either scenario, as is the evidence regarding the steering input of the cruiser at the time, which might represent an attempt by SO #2 to correct course after being struck by the Acura. In light of the equivocal nature of this evidence, I am not satisfied on reasonable grounds that it bears materially on the lability issue in this case.

For the foregoing reasons, there are no reasonable grounds in my view to believe that any of the subject officials conducted themselves other than lawfully in the course of the pursuit that unfolded with the Acura the Complainant was operating. Accordingly, there is no basis for proceeding with criminal charges and the file is closed.


Date: May 25, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit